20 prong, a defendant must simply demonstrate that he engaged in “protected activity” and that each
21 of the plaintiffs’ claims against him “arises from” that protected activity. Id. If the court finds

22 that the defendant has made such a showing, it must then determine whether the plaintiff has

23 demonstrated a probability of prevailing on the claim. Id.

24 In order to establish the requisite probability of prevailing, the plaintiff need only have

26 In the instant case, Plaintiffs refer to the allegedly misappropriated trade secrets in Skinner’s
27 declaration. (ECF No. 21.) According to Skinner, this document:

28 “[C]ontains a wide variety of confidential information related to

7
Case 2:13-cv-00415-TLN-CKD Document 61 Filed 03/23/17 Page 8 of 18

1 [Plaintiffs’] brewing processes, including but not limited to,
information regarding a variety of analytical characteristics for each
2 of [Plaintiffs’] products…[t]his document is absolutely critical to
[Plaintiffs’] brewing operations, and the information it contains
3 would be extremely valuable to its competitors. [Plaintiffs]
consider this document, as well as the detailed brewing recipe
4 specifications it contains, to be highly confidential, proprietary,
trade secret information.”
5
(ECF No. 21 ¶ 3.) An averment simply that the plaintiff has a “secret process” is a bare legal
6
conclusion. Franzen, 260 Cal. App. 2d at 252 (finding that the subject matter of plaintiff’s “so
7
called ‘secret process’ is not stated, except to hint that it had something to do with the
8
manufacture.”) Here, Skinner makes more than a bare legal conclusion that Page 13 is a trade
9
secret. She describes with reasonable particularity how the information in Page 13 specifically
10
relates to Anheuser-Busch’s brewing processes, which may include specific formulas and
11
techniques that are not generally known to the public or the company’s competitors. (ECF No. 21
12
¶ 3.) Plaintiffs claim that Anheuser-Busch spends much time, money, and effort, to develop these
13
distinctive and proprietary techniques and innovations. (ECF No. 1 ¶ 12.) Because Skinner
14
identifies and details aspects of the document with reasonable particularity to separate it from
15
matters of general knowledge, Plaintiffs adequately identify a trade secret.
16
To establish that Page 13 constitutes a trade secret, Plaintiffs must also show that it is “the
17
subject of efforts that are reasonable under the circumstances to maintain [their] secrecy.” Cal.
18
Civ. Code § 3426.1(d). Skinner’s declaration also contains statements demonstrating reasonable
19
efforts to maintain the document’s secrecy. (ECF No. 21.) Skinner affirms that her duties “as the
20
sole custodian of the Page 13 document” consist of reviewing and assessing each employee’s
21
request for the document, and granting access only “to a limited security group.” (ECF No. 21 ¶
22
4.) She declares that Page 13 is not intended to be disseminated to anyone outside of the
23
company’s security group. (ECF No. 21 ¶ 4.) Skinner’s declaration reasonably identifies Page
24
13 as a secret and demonstrates efforts by Anheuser-Busch to maintain the document’s secrecy.
25
Therefore, Plaintiffs establish a prima facie showing that Page 13 constitutes a trade secret
26
pursuant to California Code of Civil Procedure § 2019.210.
27
Defendant also submitted a declaration which argues that Plaintiffs did not use reasonable
28

8
Case 2:13-cv-00415-TLN-CKD Document 61 Filed 03/23/17 Page 9 of 18

1 efforts to maintain the secrecy of Page 13 because “the document was readily available and

2 frequently hanging on bulletin boards and employee work stations in [Plaintiffs’] facilities.”

3 (ECF No. 58 at 5.) However, in deciding the question of the potential merit of claims challenged

4 by an anti-SLAPP motion, courts may consider the defendant’s evidence, but the “court does not,

5 however, weigh that evidence against the plaintiff’s, in terms of either credibility or

6 persuasiveness. Rather the defendant’s evidence is considered with a view toward whether it

7 defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence

16 reasonable particularity to separate it from matters of general knowledge.

17 iii. The acquisition, disclosure, or use of a trade secret through improper
means
18
A claim for misappropriation of trade secrets under UTSA requires the plaintiff to
19
demonstrate the defendant acquired, disclosed, or used the plaintiff’s trade secret through
20
improper means. Code Civ. Proc., § 2019.210. UTSA defines “misappropriation” as an
21
“[a]cquisition of a trade secret of another by a person who knows or has reason to know that the
22
trade secret was acquired by improper means.” Cal. Civ. Code § 3426.1(b)(1). “‘Improper
23
means’” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to
24
maintain secrecy, or espionage through electronic or other means.” Cal. Civ. Code § 3426.1(a).
25
In the instant case, Plaintiffs allege that months after his resignation, Defendant contacted
26
Michael Azevedo, an Anheuser-Busch employee, and requested Azevedo send him another copy
27
of Page 13. (ECF No. 57 at 4.) According to Azevedo’s declaration, in response to Defendant’s
28

9
Case 2:13-cv-00415-TLN-CKD Document 61 Filed 03/23/17 Page 10 of 18

1 request, Azevedo accessed Page 13 and sent a copy of it to Defendant without the authorization of

2 a supervisor or any other person at Anheuser-Busch. (ECF No. 24 ¶ 3.) Azevedo also understood

3 that “sending the Page Thirteen to [Defendant] involved sending confidential information to a

4 person not employed by the company.” (ECF No. 24 ¶ 5.) The parties do not dispute that

5 Defendant downloaded and retained company documents and information after his resignation.

6 Nor do they dispute that Defendant disclosed these documents and information, including Page

7 13, to third parties to further the class action litigation brought against Plaintiffs.

8 Furthermore, Defendant improperly acquired the document by virtue of his former status

9 as an Anheuser-Busch employee, and by inducing a current Anheuser-Busch employee to take

10 such information. Because improper means of acquiring a trade secret includes misrepresentation

11 and breach or inducement of a breach of a duty to maintain secrecy, Defendant’s actions taken

12 without the authorization of a supervisor or any other person at Anheuser-Busch constitutes

5 With respect to the first element — the existence of a contract — Plaintiffs’ complaint

6 identifies the existence of a contract, namely the Confidentiality Agreements, and outlines

7 Defendant’s obligations under them. Clause Number 6 of the Confidentiality Agreements states:

8 “All tangible property in my custody…containing any Confidential
Information…shall not be copied or removed from the premises of
9 the Company…and shall be delivered to the Company without
keeping any copies or any portions thereof on the termination of my
10 employment.” (ECF No. 1 ¶ 15.)
11 Clause Number 7 of the Confidentiality Agreements imposes the obligation on Defendant to

12 certify compliance with the Confidentiality Agreements:

13 “Unless the Company consents or directs me otherwise in writing, I
will not at any time during or after my employment with the
14 Company use any Confidential Information for my own benefit or
disclose any Confidential Information to anyone outside the
15 Company…In addition, for a period of three (3) years following the
termination of my employment with the Company and upon its
16 request, I will certify under oath in writing that I have not disclosed
or used in any way any Confidential Information.”
17
(ECF No. 1 ¶ 16.) Therefore Plaintiffs identify the existence of a contract, and satisfy the first
18
element for breach of contract.
19
Neither party disputes Plaintiffs performance of duty under the Confidentiality
20
Agreements. Therefore, the Court does not address the second element.
21
As to the third element — Defendant’s breach — Plaintiffs assert that Defendant breached
22
the Confidentiality Agreements in a number of ways. Plaintiffs allege that Defendant acquired
23
information belonging to Plaintiffs without their knowledge or authorization, and for reasons
24
unrelated to Defendant’s performance of duties as an employee. (ECF No. 1 ¶ 21.) Defendant
25
also failed to return Plaintiffs’ confidential information upon the termination of his employment,
26
and wrongfully used, disseminated, and disclosed Plaintiffs’ confidential information. (ECF No.
27
1 ¶ 27.) Plaintiffs further assert that Defendant’s refusal to certify, under oath and in writing, that
28